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Does It Matter EPA Staff Opposed Waiver Decision?

Several news outlets report that EPA career staff recommended that Administrator Stephen Johnson approve California's waiver request. According to these accounts, the "unanimous opinion" of EPA legal and technical staff supported the waiver request. Does this matter? Some bloggers think so. I don't. Agency expertise is important, but it is not the end-all-be-all of agency decision-making, and it is no substitute for politically accountable policy decisions by political appointees.

If EPA staff argued that the unambiguous language of the Clean Air Act obligated the EPA to grant California's waiver request, I think they were simply wrong on the merits, for the reasons I have outlined in prior posts. I think there is some ambiguity in the relevant Clean Air Act language, which gave the agency some wiggle room, but (if anything) the language supports Johnson's decision to deny the waiver. In my view, neither Section 209 of the Act or the EPA's prior waiver decisions dictated a different result.

If the EPA staff were arguing that, in their view, the agency should grant the waiver either because (a) their preferred interpretation of the relevant statutory language required granting the waiver, or (b) they believed granting the waiver was better environmental policy, then there was nothing improper with Johnson adopting a different conclusion. Insofar as the Clean Air Act grants the EPA some discretion in how to interpret the Act's requirements or whether to grant the waiver request, it vests the ultimate decision-making authority in the hands of political appointees, like Johnson, not career staff. In such circumstances, the policy views of EPA career staff are only relevant to the extent an Administrator wishes to take their counsel. If we disagree with the Administrator's conclusion, it is because we prefer a different policy, not because the Administrator failed to follow the lead of agency staff.

Community Rights Counsel's Tim Dowling suggests the opposition of EPA career staff should influence judicial review of the case, and lessen the degree of deference a reviewing court shows the EPA's decision. Dowling writes:

the whole concept of deference is rooted in the idea that courts will defer to the technical expertise of the agency. Here, Johnson reportedly made his decision in the face of a contrary, unanimous recommendation by his technical and legal staff. So there's a genuine question whether the usual justifications for deference obtain in this case.
I disagree. Under Chevron and its progeny, the legal argument for deference is not agency expertise, but the delegation of policy-making discretion to administrative agencies. This rationale should be unaffected by the views of agency staff.

Under Chevron, where the relevant statutory language is clear, the statute controls, period. Where a statute is ambiguous, however, courts are to defer to the implementing agency's any reasonable interpretation offered by the implementing agency. While the existence of agency expertise may be the reason Congress chose to delegate such authority to administrative agencies, for purposes of judicial review, what matters is whether there was a delegation of interpretive authority to an administrative agency. And, as Chevron's progeny make quite explicit, where statutory language is ambiguous, courts are to presume that Congress sought to delegate interpretive authority to the relevant implementing agency.

One consequence of this rationale is that it is not particularly relevant whether career agency staff believe that one interpretation of ambiguous statutory language is preferable to another. So long as the relevant statutory language is ambiguous, and both interpretations are permissible constructions of the relevant language, the head of the agency is free to prefer either interpretation, for whatever reason, and Chevron deference is owed. Therefore, so long as the EPA's interpretation of the Clean Air Act was based upon a permissible construction of Section 209 (the waiver provision), a reviewing court should provide full Chevron deference to the EPA's interpretation, irrespective of the views offered by agency staff.

PersonFromPorlock:
The wrong decision made by the right person is still the wrong decision, and the staff's opposition argues that it was wrong. So yes, it may matter.

But only in the real world, not the legal one.
12.23.2007 2:01pm
Duffy Pratt (mail):
Maybe there's nothing wrong with it. But it does sound like another example of the Bush administration gathering all the relevant information, and then doing exactly the opposite of what their experts recommend. From a legal standpoint, you are probably right, but it is politically tonedeaf, at best...

Also, I think its the sort of thing that Congress would might like to look into, in exercising their oversight function. Presumably, many in Congress think they put together these agencies so that the country can benefit from the agencies expertise. If that expertise is then disregarded for reasons that Congress doesn't like, then Congress might want to restructure the agencies, or write some exceptions into the Chevron doctrine.
12.23.2007 2:03pm
John (mail):
The (somewhat weak) environmental rules worked out in Congress represent the compromises that always underlie good democracy. The EPA was right as a matter of policy to give deference to that forum rather than to allow federalization of the issue that would ignore the economic consequences to the nation that Congress appears to have been sensitive to.
12.23.2007 2:05pm
Nessuno:
Elections have consequences. Go figure.

These people who argue for the "autonomy" of beauracrats frighten me. Do we really want to forsake democracy in this way? Do we really want to hold up the EU style of regulation and government as an example of how America should be run?
12.23.2007 2:20pm
frankcross (mail):
The EPA was made an executive branch agency under the control of the political branches. While this choice could be debated, the decision makes sense to me. I would be interested in knowing the rationale of the staff decision, but it implicates economic issues that are not particularly within EPA expertise.
12.23.2007 2:23pm
John Burgess (mail) (www):
Presidents are elected--even if those who opposed their elections forget that at times.

As elected officials, presidents can exercise political power, even if the policies behind those powers is not to the liking of some of the electorate or bureaucrats in the executive branch. That the policies might be different had someone else been elected is utterly immaterial.

The office of the president comes with power to push policy preferences, not a requirement to make sure the maximal number of Americans be happy with them because they coincide with their own policy preferences.

This works no matter who, no matter which party holds the office of President. Bureaucrats actually should be shutting up and marching like good little soldier unless to do so violates law or morality. Their policy preferences may be better, they may be equal, they may be worse. The bureaucrats have channels in which they can argue their preferences and in which their arguments might prevail. But winning is not guaranteed.

If they lose, they can try again another time. Or they can work (within the limits of the Hatch Act) to see a change in presidents and administrations. To leak, to whine to the press or Congress, etc. are not actually manifestations of professional behavior or intellectual superiority. They're the signs of immaturity and the unwillingness to follow the rules of how representative government works.
12.23.2007 2:31pm
Thomas_Holsinger:
That's how we do it at the trial court level. It's up to the appellate courts to tell us not to use standard rules of interpretation.
12.23.2007 2:43pm
snelson (mail):
Actually, Mr. Burgess, it effectively amounts to a coup attempt, and the next step would be to fire one in five every three months at will until these clowns are gone.

Of course, since the government employees union is a Democrat Party extension, don't expect the Loyal Opposition to agree. And the only response to your exception "unless to do so violates law or morality" is to say, "Don't like it? Fine. Resign first." After all, if it isn't worth that price, is it really more than opinion?
12.23.2007 3:27pm
Smokey:
I sure hope the EPA bureaucrats didn't leave the custodial staff out of the loop. They should have a say in this too, you know! Diversity of opinion, and all that...

/s


Karl Marx wrote of what he considered to be the gravest danger on the road from capitalism to communism, in the form of an unelected, unresponsive, anonymous and completely unaccountable bureaucracy, which cannot be fired or effectively challenged. Marx would completely understand today's United Nations. And the EPA.
12.23.2007 4:01pm
John Burgess (mail) (www):
snelson: No argument.
12.23.2007 5:28pm
Snowman:
If that expertise is then disregarded for reasons that Congress doesn't like, then Congress might want to restructure the agencies, or write some exceptions into the Chevron doctrine.


Or Congress can write an unambiguous statute telling the agency what the hell it wants it to do. If Congress doesn't want to leave a decision like this up to the executive, it doesn't have to.

The way it is now, Congress (or members thereof) can wring their hands at Republicans squashing the brave opinions of lifers at EPA without taking one bit of the political hit were a third of the states to have different emissions standards, and likely making cars in those states much more expensive.
12.23.2007 6:00pm
Larry Fafarman (mail) (www):
IMO the denial of the waiver request is an airtight slam-dunk. According to a Los Angeles Times article,

[EPA Administrator Stephen] Johnson reasoned that global warming is not a problem "exclusive or unique" to California. In the past, the state has been allowed to press ahead with anti-pollution rules because of its smog problem.

"Unlike other air pollutants . . . greenhouse gases are fundamentally global in nature," he said in a letter to Gov. Arnold Schwarzenegger.

Johnson pointed to an obscure passage in the Clean Air Act that said California's request for a waiver should be rejected if the state cannot show its regulations are needed to "meet compelling and extraordinary conditions."

Another news report said,

The EPA's legal staff reportedly prepared a PowerPoint presentation advising Johnson that if he denied California's waiver request and the state sued, the EPA was likely to lose, agency staffers told the Washington Post. If he granted the waiver and automakers sued, the staff wrote, "EPA is almost certain to win."

[EPA spokesperson Jennifer] Wood said agency officials have been unable to find the document. She said the EPA's general counsel and others who briefed Johnson on the waiver issue insist it was never presented to him.

"According to all accounts, he never saw the document," Wood said. But she added that he was briefed on the legal implications of his decision.

Sheeeesh -- why wasn't he shown the Powerpoint presentation? And how can we judge his staff's advice without seeing it?

Also, eleven other states have already adopted the California emissions standards and five other states plan to. The California emissions standards are supposed to be an all-or-nothing package deal. What if some of those states don't want California's proposed CO-2 standards?

Also, the waivers were originally intended to apply just to emissions certifications of individual vehicles and not to the setting of average emissions rates for all vehicles sold in a state.

With all these shenanigans in government, it is no wonder that California's grossly unconstitutional $300 "smog impact fee" on federally-certified vehicles lasted about 8 years before finally being thrown out by the courts.
12.23.2007 6:09pm
Elliot123 (mail):
This sounds a lot like the deference many folks want to give to the career lawyers in the Justice Department. Who cares if someone is a career bureaucrat working for the government? Is that something special? They don't govern us. They weren't elected. Thye don't make the laws. They don't decide the legal questions. We have elected people to do that, and they aren't the career bureaucrats.

If the career people have some expertise, then we should listen to it and evaluate it along with informatin from other sources. That's all.
12.23.2007 6:26pm
Tim Dowling (mail):
Jonathan -- First, thanks for not referring to us as the "Soros-funded Community Rights Counsel." It will cut down on comments, but it will keep the discussion where you always keep it, on the merits.

[Warning -- what follows may be jarring] I don't agree with your entire post, but I think your basic criticism of mine is well taken. I failed to distinguish between Chevron and Skidmore deference. My point still holds true for SKidmore I believe, but perhaps less so for Chevron. For those interested, see US v. Mead Corp. I'll try to clean up the Warming Law post. Thanks.

One other point I'm still thinking thru: Chevron usually applies only when the agency reading is embodied in a rulemaking (I think Justice Scalia is especially emphatic on this point). Will it apply at all to a waiver decision? We shall see.

Tim Dowling
12.23.2007 7:14pm
Vernunft (mail) (www):
Under Chevron and its progeny, the legal argument for deference is not agency expertise, but the delegation of policy-making discretion to administrative agencies.
Thank you. My professors don't seem to get this; it means having to pretend the law is something on exams, and know it's different in my own mind. Glad someone gets it.
12.23.2007 7:23pm
David Hecht (mail):
Like nessuno, I am baffled by this supposed deference to "expertise" that is "owed" to the "professional staff".

Speaking as a former "professional staff" guy myself, I'd have been horrified if the agency head (in my case, the SECNAV) had deferred his decision making to the career bureaucrats.

Executive agencies exist to implement policy. And as was constantly repeated during the Reagan Administration, policy is personnel.

If we want to go back to a system where there is no "professional civil service" but rather a system in which each incoming administration gets to revamp the agency from top to bottom, then, yes. Until then, I will continue to view arguments that we "owe deference" to the professional staff as essentially special pleading.
12.23.2007 7:43pm
Justin (mail):
An administrative decision is still invalid if its arbitrary, capricious, and unsupported by substantial evidence. And both under the intent of Congress and the seat-belt case, Adler's "political-accountability" argument was completely rejected. There is a lot of debate about the reasons behind Chevron deference, and I think Jonanthan's reasoning fails to understand the limits of the case's logic:

When a challenge to an agency construction of a statutory provision, fairly conceptualized, really centers on the wisdom of the agency's policy, rather than whether it is a reasonable choice within a gap left open by Congress, the challenge must fail. In such a case, federal judges -- who have no constituency -- have a duty to respect legitimate policy choices made by those who do.

- But this doesn't mean that Congress can't LIMIT executive discretion, by denying "political choices" as a valid explanation of its actions.

Any interpretation as to the EPA's denial of a waiver has to start with the waiver provision and what sort of discretion was permitted. If political discretion was not a subset of acceptable grounds for the agency to act, then the fact that agency expertise found the waiver justified is very relevant.

Also: Even if political decisions was an acceptable way to make a decision, then certainly the fact that the politics of the subject led the EPA to overrule its agency expertise is certainly NEWSWORTHY.

That is, if political accountability is important, then transparency as to the decisionmaking process is necessary. You seem to be arguing out of both sides of your mouth - this is a politically-motivated decision, and thus political accountability is the only sufficient response, so any information that would hold the Bush administration politically accountable is irrelevant.
12.23.2007 9:21pm
EliRabett (mail) (www):
Larry Fafarman has it right. The staff was asked what the consequences of the two possible choices were, they gave their advice not as to which choice was to be made, but the likely consequences of each choice. With that information the political leadership made its choice.

Some folk here appear to think that the duty of the staff would be to give the advice that the politicals wanted to hear. That seems like a good way to get bad advice
12.23.2007 10:21pm
Oren:
Therefore, so long as the EPA’s interpretation of the Clean Air Act was based upon a permissible construction of Section 209 (the waiver provision), a reviewing court should provide full Chevron deference to the EPA’s interpretation, irrespective of the views offered by agency staff.
The fact that the staff disagreed so unanimously and vigorously is highly suggestive that the EPA's construction is not reasonable. Of course, the optimal solution would be for Congress to actually legislate what it means but that doesn't seem likely for some reason.
12.23.2007 11:59pm
LawClerk1 (mail):
I agree with Jonathan 100%---it doesn't matter and it shouldn't. But note the 9th Circuit's opinion in Defenders of Wildlife v. EPA in 06 or 07, where the Court relied on just this kind of disagreement between field offices and DC political types to term an agency decision "internally inconsistent." Of course, Defenders was overturned by the Supremes (but on other grounds)...wouldn't shock me if this went the same route.
12.24.2007 1:53am
Mr. Liberal:

politically accountable policy decisions by political appointees


First, the political appointees of a second term President are simply not that accountable.

Second, even if the appointees are from the first term, it is hard for the public to keep track of the numerous decisions by countless appointees and hold an administration accountable for the decisions of the political appointees in a particular department.

Obviously, career civil servants are not that accountable to the public for their decisions either. But, the myth that political appointees are somehow accountable while career civil servants is destructive. The truth is that neither is all that accountable.

So, why be concerned when the

unanimous opinions
career civil servants are overridden by political appointees?

For one, because career civil servants who work for the EPA probably have a greater commitment to the environment than the political hacks (even former industry lobbyists) that the Bush administration often appoints to important positions.

Should we be concerned when short-term political appointees (who may very well go back to jobs lobbying for industry after their short-term stints are over) override the opinions of career civil servants who are so passionate about protecting the environment that they have devoted a long-term career to it?

I am afraid that certain bogus assertions, to wit, that political appointees doing short-term stints are held accountable so we should not worry, does not answer that question.

It is interesting to see law professors, like Mr. Adler, who is supposedly smart, buying into such obviously bogus assertions without exhibiting one ioata of critical thinking.

Here is a hypothetical example of this bogus thinking as applied to a real case:


We shouldn't be worried if someone like Michael Brown, the illustrious former Judges and Stewards Commissioner for the International Arabian Horse Association, overrides the decisions of career civil servants working for FEMA. After all, he is a political appointee and thus will be held accountable if he does not do this job right. (Forget about the fact that the job is a short-term stint for him and which he isn't qualified.) Accountability will be great comfort to people who are screwed by his failures as head of FEMA.


By the way, what happened to Michael Brown after he was held "accountable"? He worked in a lucrative job advising InferX, a publicly traded company that makes its money "helping" the U.S. government. According to Wikipedia, Michael Brown has even been named CEO of InferX. I wonder if he got that job because of his wonderful management skills, as demonstrated by his "leadership" at FEMA. Or, I wonder, could it be that cronyism is a good way to get government contracts?

If "accountability" means getting great jobs in the private sector after screwing up in the public sector, it doesn't really mean much, does it?

That doesn't stop various "professors of law" from touting this vacuous and empty "accountability" as a reason to feel secure about the decisions of "accountable" political appointees.

I consider this exhibit 101 in my case for requiring all law professors to have a Ph.D. I probably shouldn't expect so much for someone who only has a J.D. from the lowly George Mason University.*

-Mr. Liberal

* George Mason University is apparently a client of InferX. Along with the following:

United States Coast Guard
Department of the Air Force
Department of the Navy
Internal Revenue Service
Missile Defense Agency
Lockheed Martin Corporation
Northrop Grumman Corporation
George Mason University

Its comforting to know that Michael Brown is still serving the taxpayers (including those who pay for George Mason University) after he was held "accountable."
12.24.2007 1:56am
Mr. Liberal:

According to these accounts, the “unanimous opinion” of EPA legal and technical staff supported the waiver request. Does this matter? Some bloggers think so. I don’t. Agency expertise is important, but it is not the end-all-be-all of agency decision-making, and it is no substitute for politically accountable policy decisions by political appointees.


I can't help but note that Adler cannot even write one paragraph without contradicting himself.

Agency expertise is important, but the conclusions that those experts draw do not even matter? How exactly is that even coherent?

If the conclusions that people with the "important" expertise draw do not even matter, how exactly is that expertise "important"?

Well, one thing we know. That supposedly "important" expertise is "no substitute" for the decisions of "politically accountable" appointees like, for example, former FEMA director Michael Brown.

I mean, how can you possibly find a "substitute" for the grossest incompetence possible that is later "punished" with a lucrative position working for a government contractor. I guess there is "no substitute" for the "accountability" that these political appointees face. The last thing we would want is for the conclusions of people with the "important" expertise who actually devote their careers to these issues to actually "matter."
12.24.2007 2:15am
David M. Nieporent (www):
Should we be concerned when short-term political appointees (who may very well go back to jobs lobbying for industry after their short-term stints are over) override the opinions of career civil servants who are so passionate about protecting the environment that they have devoted a long-term career to it?
No, because the EPA's job isn't to "protect the environment." It's to enforce environmental laws.

The very ideological commitment you identify is part of the problem.
12.24.2007 3:01am
Mr. Liberal:

No, because the EPA's job isn't to "protect the environment." It's to enforce environmental laws.


What a brilliant distinction.

And what is the purpose of environment laws?

And what is the purpose of enforcing environmental laws?

The purpose of environmental laws is protecting the environment. And the purpose of enforcing environmental laws is also protecting the environment. Duh! The purpose is not made merely to harass people who do not comply with meaningless regulations.

If there were a textually possible interpretation of a particular environmental law that did nothing to protect the environment, but does severely inconvenience industry or others, then obviously one should disfavor that interpretation. Because the purpose of environmental laws and the purpose of enforcing those laws is to protect the environment. Interpretations that do not advance or counter that purpose should be disfavored. Obviously.

If you do not believe in protecting the environment, you should not be working for the EPA. Because you are not going to be resolving ambiguities in a reasonable way in accordance with the purpose of the statute.

Maybe your skewed point of view would work in a world without textual ambiguity. But not in the real world.
12.24.2007 3:49am
Larry Fafarman (mail) (www):
This waiver request is an abuse of the California waiver provision. There was great opposition to enacting the waiver provision in the first place. Because of the high mobility of motor vehicles and air pollution, all motor vehicles sold anywhere in the US must have very stringent emissions standards, so it was argued that California did not need its own special standards. The initial opposition to the California waiver provision was so great that the provision did not even identify California by name but was expressed as a "grandfather clause" --

The Administrator shall, after notice and opportunity for public hearing, waive application of this section to any State which has adopted standards (other than crankcase emission standards) for the control of emissions from new motor vehicles or new motor vehicle engines prior to March 30, 1966, . . . 42 USC §7543(b)

One of the main purposes of the California waiver provision was to use the state as a "testing area" for new emissions control technologies, with the aim of adopting the best technologies nationally.

Believe me, I know what I am talking about because I filed several federal lawsuits against California's grossly unconstitutional $300 "smog impact fee" on federally-certified used vehicles brought into the state. I appealed twice to the U.S. Supreme Court. I correctly argued that despite the 11th Amendment and the Tax Injunction Act, this was a federal case because California had "[left] the sphere that was exclusively its own" (Parden v. Terminal Railway of the Alabama State Docks Dept., 377 U.S. 184 (1964)) by basing a tax entirely on the state's special status under federal emissions regulations. My argument was vindicated when a former top California auto emissions control official testified in state court that the fee required US EPA approval. The fee was finally thrown out by the state courts.
12.24.2007 1:30pm
Ken Arromdee:
If the conclusions that people with the "important" expertise draw do not even matter, how exactly is that expertise "important"?

Funny how this comes soon after another post about "and" and "or" and interpreting English from context. Obviously, he doesn't believe that it literally doesn't matter, but rather that it's not a deciding factor.
12.24.2007 1:36pm
byomtov (mail):
I'm puzzled by those who support this decision because it was made by "politically accountable" appointees rather than "unelected career bureaucrats."

Wasn't this waiver requested by the government of CA? Isn't the Governor of CA an elected official, and much more politically accountable than Administration appointees? So if the voters of CA, acting through their elected officials, request a waiver, why should unelected and inexpert temporary bureaucrats - like Johnson - deny it without a very good technical reason?

It's not as if the EPA staff simply got together one day and recommended that CA be given a waiver, unasked. Their advice was in response to a request by the kind of political actors that so many here think ought to make these decisions.
12.24.2007 1:45pm
Libertarian1 (mail):
I have a question for Justin, Mr. Liberal etc. It is a given that on almost any question "experts" can be found on both sides. What do you suggest I do, as a voter, if the currently employed long term career civil servants are proponents of a view I oppose?

I can vote for Congress, Senate and President. Would you accept, if upon the election of a new President, he/she fired all the long term employed career civil servants (bureaucrats) and installed those whose opinions agreed with him? if not, please tell me how we can effect change in the Federal government?

Because if I understand you correctly, you seem to oppose the political appointees overruling the advise of the permanent staff. If that continues, we voters will have no way of getting our views actually enacted into law.
12.24.2007 2:03pm
Libertarian1 (mail):
I'm puzzled by those who support this decision because it was made by "politically accountable" appointees rather than "unelected career bureaucrats."

Wasn't this waiver requested by the government of CA? Isn't the Governor of CA an elected official, and much more politically accountable than Administration appointees? So if the voters of CA, acting through their elected officials, request a waiver, why should unelected and inexpert temporary bureaucrats - like Johnson - deny it without a very good technical reason?



So, if the elected Governor of Mississippi wants to markedly alter abortion laws to make them more difficult to obtain, you would support the politically accountable request? A major problem I see with actually achieving Federalism is proponents are for it when they disagree with the Federal law or interpretation and oppose it when they support what the Feds are doing.
12.24.2007 2:10pm
BCN:
In my experience as a bureaucrat I find it hard to believe that there is a unanimous opinion within the whole staff on this. The high level staff may be unanimous, but people below them have a wide variety of opinions and ideas that are not shared by the top officials.

The line that all the technical advisors and legal staff are unanimous makes me want to call Bull Sh#t on this. The reason it seems unanimous is that only one side is whining to the press about it.
12.24.2007 2:38pm
byomtov (mail):
So, if the elected Governor of Mississippi wants to markedly alter abortion laws to make them more difficult to obtain, you would support the politically accountable request?

No. I wouldn't, actually. So what? I'm not claiming any request by elected officials ought to be viewed favorably. But I would oppose it on policy grounds, not because I thought it lacked political legitimacy (assuming compliance with court rulings on abortion rights).

The point I'm making is that there is a lot of wailing and gnashing of teeth about policies being made by "politically unaccountable career bureaucrats," but the fact is that the waiver in question was requested by a politically acountable figure, in fact by one with much greater accoutability than Johnson, so these complaints strike me as silly.


A major problem I see with actually achieving Federalism is proponents are for it when they disagree with the Federal law or interpretation and oppose it when they support what the Feds are doing.

While I'm no big federalist, I do agree 100% that federalism is an argument of convenience. If a state wanted to have looser standards and was turned down by the EPA we would have an altogether different set of comments.
12.24.2007 2:53pm
eyesay:
Jonathan Adler wrote, "Agency expertise ... is no substitute for politically accountable policy decisions by political appointees." This is a very interesting comment to make near the end of the seventh year of the Bush administration, when political accountability in the American experiment has been sorely lacking.

The Bush administration successfully bamboozled the American electorate into believing that Iraq was responsible for the attacks of September 11, 2001. The media, knowing the prevalence of belief in this lie, did little or nothing to counteract it. Where is the political accountability?

The Bush administration, by policy and by practice, committed acts of torture in contravention of the Geneva Convention, which is binding on the United States. Mr. Mukasey refused to declare that waterboarding is torture, even though it has been officially recognized as torture by the U.S. government at least since World War II. And the Senate approved his nomination for attorney general anyway.

Ignoring habeas corpus; "extraordinary rendition"; illegal surveillance of citizens; vote suppression; torture; cover-ups — the list goes on and on. For the Bush administration, political accountability simply does not exist.
12.24.2007 2:54pm
Mr. Liberal:

Because if I understand you correctly, you seem to oppose the political appointees overruling the advise of the permanent staff.


I am not against political appointees overruling permanent career staff. I am against the idea that it does not matter when they exercise the powers that they have been granted by statute to overrule the "unanimous opinion" of career staff.

When political appointees do so, part of "accountability" is for such disagreement and dissent to come to light so that the public can know that these political appointees are taking such action. Perhaps the political appointee is making the right decision, but it still is a matter of public concern when the views of career staff and political appointees sharply diverge. Furthermore, it should matter under Chevron analysis. Congress delegates certain powers to administrative agencies in part because such agencies are experts. When the policy decisions of "politically accountable" appointees who are temporarily running the ship ignore and disregard this expertise, there is much less reason for courts to defer to the resulting statutory interpretations. I would not argue that such decisions deserve no deference, rather, I would argue that they deserve much less weight.

There is a very good reason that we allow political appointees to overrule career staff. Not because they are very much more "accountable" for their decisions after they make them (that idea, as has been demonstrated, is something of a joke). Rather, they should be able to overrule political appointees because elections matter and the people chose a President who should then actually be in charge of the executive branch. Obviously, the President would not be in charge of the executive branch if career staff had the final say.

Political accountability, to the extent that it exists, is quite important. But in reality, political appointees are frustratingly difficult to hold to account. It is not the major factor separating political appointees from career civil servants.
12.24.2007 3:16pm
David M. Nieporent (www):
And what is the purpose of environment laws?
Laws don't have "purposes." They have texts.

Each of the hundreds of legislators who voted on a law had different sets of "purposes," particularly given that the law likely had numerous provisions and was voted on as a compromise by people with different views.
And what is the purpose of enforcing environmental laws?
To enforce the laws passed by Congress.
12.24.2007 3:22pm
Elliot123 (mail):
"Should we be concerned when short-term political appointees (who may very well go back to jobs lobbying for industry after their short-term stints are over) override the opinions of career civil servants who are so passionate about protecting the environment that they have devoted a long-term career to it?"

So, why should we defer to passion? And how do we differentiate between the passionate employees and those who are just trying to pay the mortgage and get the kids through school?
12.24.2007 3:28pm
Mr. Liberal:

Laws don't have "purposes." They have texts.


This statement is entirely incoherent and nihilistic.


Each of the hundreds of legislators who voted on a law had different sets of "purposes," particularly given that the law likely had numerous provisions and was voted on as a compromise by people with different views.


A "compromise" is what I would call a "meeting of the minds." Actually, that there are compromises reinforces the idea that a law has a purpose. The purpose is to compromise so that the agenda of X is maximized in a manner that is least harmful to Y, and the agenda of Y is maximized in a manner that is least harmful to X.

The idea that legislators never have a shared understanding of the laws they pass is ridiculous. I am not asserting that the shared purpose of a law is always unambiguous. I am asserting that some shared purpose exists among the legislators who vote yes. (The purpose of legislator X might be to support Y who sponsored a bill, perhaps because X trusts Y's judgment. In that case, the detailed purpose of Y can be imputed to X.)


Q: And what is the purpose of enforcing environmental laws?
A: To enforce the laws passed by Congress.


So much folly, so little time.

And why do we allow Congress to pass laws? Is it so they can pass rules that have no purpose in order to harass us? So we can waste our time and energy complying with meaningless dictates? I think not. We allow Congress to pass laws whose purpose is to solve problems. That is our purpose in giving Congress the power to pass laws in the first place. So it can pass laws that have some purpose.

I am not going to take this argument much further. I do not find it that amusing to argue with mindless nihilists.
12.24.2007 4:19pm
courtwatcher:
David M. Nieporent,
Federal agencies do indeed have purposes -- embodied in the most general sense in their "missions" and "mission statements." For example, the FAA's website says "Our mission is to provide the safest, most efficient aerospace system in the world." Similarly, the EPA's website says "The mission of the Environmental Protection Agency is to protect human health and the environment."

And there's nothing wrong with this - in fact, it's necessary. Were agencies merely to view the statutes they enforce and interpret as "texts" to be "enforced," the FAA undoubtedly would be even less efficient at achieving the goals that Congress clearly has set for it. A haphazard set of legal interpretations with no purpose or goal would not accomplish what Congress has wanted to accomplish - to protect air travelers and allow efficient running of air traffic.

In general, as Chevron makes clear, agencies simply wouldn't be able to do the job that Congress has asked them to do if they did not have the ability to make judgments about the "purpose" of their regulatory work. These agency goals, like the EPA's or the FAA's, are not an "ideological commitment" but a set of policy preferences that Congress has embodied in its laws, including in some cases an intention to delegate policy to agencies. Agencies have scarce resources and complex competing values to weigh, and they have to have some basis upon which to decide how to interpret and enforce laws that were designed by Congress to be interpreted through regulation.

Under Chevron and related cases, it is clear that agencies have the power to "fill in gaps" and to resolve ambiguities in the statute. And as Jonathan says above, the rationale for this is the delegation of policymaking power to agencies.

Under what principles would you recommend that the FAA fill in these gaps, if not based on the mission that Congress has given it to make air travel safer and more efficient? And same question with respect to EPA's regulation of environmental quality?

Mre broadly: Do you think Chevron was wrongly decided? If so, what would you replace it with? Do you believe there is a single correct "answer" (without reference to policy concerns) to every question an agency has to answer in applying every statute? And if not, how would an agency determine a course of action among multiple possible "correct" answers?
12.24.2007 4:39pm
Mr. Liberal:

So, why should we defer to passion? And how do we differentiate between the passionate employees and those who are just trying to pay the mortgage and get the kids through school?


Compare:
A political appointee who does not believe in the mission of an agency. His purpose is to get a lucrative job from a regulated industry after his short-term stint in "public service" is over. Alternatively, he is ideologically opposed to the mission of the agency.

to:
A career civil servant who is passionate about the mission of the agency.

Certainly, this is not a very good argument for deferring to the political appointee, is it. All things considered, one would expect that someone who is committed to a mission will do a better job at advancing that mission than someone who is not. If you were in the military and you were committed to accomplishing a particular mission, surely you would feel more comfortable putting your life in the hands of fellow soldiers who were also committed to the mission, rather than those thinking about going AWOL or deserting.

Think about the theme of my argument, which is this: "Political accountability" is weak and does not significantly improve the decisions of relatively unaccountable political appointees vis a vis career civil servants. Further, when political appointees are chosen specifically because they disagree with the mission of the agency they oversee, we can expect that their decisions will be inferior to career civil servants.

This does not mean that political appointees should not be able to overrule career civil servants when provided for by law. After all, it would be very difficult for the President to control the executive branch except through political appointees. Rather, the argument is that it does in fact matter when there is a sharp disagreement between a political appointee and the vast majority of career civil servants. First, the public should know about such disagreements to increase "political accountability." Second, interpretations of law by such appointees should be given less deference. The reason that Congress gave the agency the power to administer laws is precisely because that agency brings expertise to bare. A political appointee who shows total disregard for that expertise (which goes to the very purpose of having the agency administer the law in the first place) should not be given the same deference normally given to administrative agencies.
12.24.2007 4:41pm
Dave Hardy (mail) (www):
Having done admin law for some time--

The agency might be able to keep the legal opinions out of the record. Unsure there, since we rarely had a chance to employ Chevron deference.

Staff memos -- hard to say. To the extent they advise on policy rather than state facts, perhaps.

But if they are included in the record, it'd be difficult to defend the case, unless the decisionmaker wrote down just why he/she rejected each argument -- which few decisionmakers are going to do (that's why they have the staff to do all the writing). In that event, it'd be "arbitary and capricious" as the term is used -- a decision to deny, when all the administrative record said grant, and there's nothing to explain why those opposing memos were rejected.
12.24.2007 5:44pm
Moneyrunner43 (www):
The Left has an interesting view of the morality and disinterestedness of career civil servants. On the one hand we have the pure and disinterested Dudley Dooright, brave defender of all that is pure and holy beavering away in the bowels of the bureaucracy. On the other hand we have the dastardly Snidley Whiplash, political appointee, warming a seat long enough to go to work and amass millions working for General Pollution Inc.

It’s hard to decide who to support: the pure of heart Dooright wearing the white hat rescuing Nell from the tracks to which she has been tied by Whiplash? Or … but the horse usually comes to the rescue.

The last time I saw such simpleminded caricatures was watching Bullwinkle, but Mr. Liberal has brought them all back.

Thanks, I needed that this Christmas eve.
12.24.2007 5:52pm
dre (mail):
"A career civil servant who is passionate about the mission of the agency. "

We don't need more Al Gores at EPA. We need dispassionate scientists, engineers and public health professionals advising the political appointee.
12.24.2007 7:13pm
Thomas_Holsinger:
Anything to avoid elections and accountability to the voters. We've heard that before.
12.24.2007 7:18pm
Larry Fafarman (mail) (www):
IMO the California waiver provision has long outlived its usefulness and should be repealed. The California waivers have become a headache and a nightmare. For example, one of the spinoffs of this provision was that tax of abominations, the grossly unconstitutional $300 California "smog impact fee" on federally-certified used cars brought into the state. Also, around 1979, the EPA insanely ruled that California-certified vehicles could not be sold outside of California, and that ruling was upheld 2-1 by the appeals court (Motor &Equip. Mfrs. Ass'n, Inc. v. EPA, 627 F.2d 1095 (D.C. Cir. 1979)). That ruling imposed a great burden on automakers -- before then, many automakers had for convenience sold California-certified vehicles throughout the USA or in the western states. The reason for the ruling was that at that time the California standards were less stringent on CO than the federal standards while being more stringent on NOx (three-way catalytic converters have eliminated the CO v. NOx control tradeoff). However, a Congressional report accompanying the federal law in question said that studies had determined that the California CO standard was adequate for the entire country!

California has been very hypocritical about auto emissions control. The state has created financial disincentives for the ownership of newer motor vehicles, which tend to have lower emissions than older motor vehicles. These financial disincentives are:

(1) Annual motor vehicle registration fees based on the depreciated financial value of a car. The annual fees are nominal for old cars but amount to hundreds of dollars for new cars.

(2) Charging full sales tax on new vehicles and used vehicles purchased from dealers.

(3) Permitted auto insurance "redlining" -- i.e., the charging of exorbitant auto insurance premiums based on place of residence (such as ZIP code). Collision and comprehensive insurance -- which are higher on newer vehicles -- are of course higher in the redlined areas. Perversely, the effect of this redlining is greatest where auto emissions control is needed most -- in the inner city of Los Angeles. Prop. 103 has reduced auto insurance redlining.
12.24.2007 7:53pm
Elliot123 (mail):
"Compare:
A political appointee who does not believe in the mission of an agency. His purpose is to get a lucrative job from a regulated industry after his short-term stint in "public service" is over. Alternatively, he is ideologically opposed to the mission of the agency.

to:
A career civil servant who is passionate about the mission of the agency.


Compare
A civil service employee who does not believe in the mission of an agency. His purpose is to pay the mortgage, get the kids through school, and collect a generous government pension when his public service is over. Alternatively, he is ideologically opposed to the mission of the agency.

To:
A political appointee whose tenure is a function of the will of the people expressed in a free election.

Again, what does passion have to do with the issue? History records all kinds of villians who have been passionate.
12.24.2007 7:58pm
Mr. Liberal:
Elliot123,

I agree with you that civil servants can potentially be bad. My point is that "political accountability" is not a good reason to think that political appointees will be better.

The argument that political appointees decisions should trump civil servants because that is the result of an election is also not something I disagree with, depending, of course, on the particular institutional context.

Finally, I would not argue in favor of being passionate for an unjust cause. The adjective "passionate" used to modify "child molester" is quite scary. But, part of the reason that it is scary is because we fear that a passionate evil doer will be more effective than one not committed to their evil plans.

The point is that someone who is committed to an objective will do a better job than someone who is not. A political appointee who is not committed to the mission of their agency or who does not agree with the purpose behind the law administered by an agency is not going to be as effective as someone who is committed to the mission of the agency. On the other hand, they are likely to less harm than someone who is passionately committed to thwarting the mission of the agency.

I do not know where you got the idea that I was endorsing passion without regard to the end one advances, and the means by which one seeks to advance those ends.
12.25.2007 2:42am
Larry Fafarman (mail) (www):
EliRabett said (12.23.2007 10:21pm) --
Larry Fafarman has it right. The staff was asked what the consequences of the two possible choices were, they gave their advice not as to which choice was to be made, but the likely consequences of each choice. With that information the political leadership made its choice.

As I previously noted, the EPA says that Administrator Johnson never saw the PowerPoint presentation that his legal staff prepared for him and now the EPA says that it can't even find the presentation. Here again is my original quotation from a news article:

The EPA's legal staff reportedly prepared a PowerPoint presentation advising Johnson that if he denied California's waiver request and the state sued, the EPA was likely to lose, agency staffers told the Washington Post. If he granted the waiver and automakers sued, the staff wrote, "EPA is almost certain to win."

[EPA spokesperson Jennifer] Wood said agency officials have been unable to find the document. She said the EPA's general counsel and others who briefed Johnson on the waiver issue insist it was never presented to him.

"According to all accounts, he never saw the document," Wood said. But she added that he was briefed on the legal implications of his decision.

We keep hearing that there were all these great arguments against the waiver denial, but we never see them.

BTW, a big deal has been made here about the fact that EPA Administrator Johnson is a "political appointee," but he is not an EPA outsider -- the above news article says that he is a 26-year EPA career veteran.

This article says that 11 other states have adopted the California standards package and that 5 other states plan to. Of these 16 states, 13 plan to join California's lawsuit over denial of the waiver request (Illinois, which has not committed to adopting the California standards, also plans to join the suit).
12.25.2007 8:09am
Elliot123 (mail):
Mr. Liberal,

Well, you initially told us about "opinions of career civil servants who are so passionate about protecting the environment that they have devoted a long-term career to it?"

Such passion can be limited to what is covered by the law, or it can extend to imposing one's personal agenda on a nation that has not enacted laws congruent with that agenda.

So, I really don't see passion as a variable to be cosidered in deciding policy issues.

I do agree that a passionate person might be a more effective advocate for their position than someone lacking such passion. But, the passion itself tells us nothing about the merits of their position.

Merry Christmas!
12.25.2007 12:06pm
Larry Fafarman (mail) (www):
Elliot123 said,
Mr. Liberal,

Well, you initially told us about "opinions of career civil servants who are so passionate about protecting the environment that they have devoted a long-term career to it?"

As I pointed out, EPA Administrator Johnson is a career civil servant himself -- he has worked for the EPA for 26 years.

As I said, IMO the California waivers should be abolished. IMO the California waivers were never needed. In my federal lawsuits against the grossly unconstitutional California $300 "smog impact fee" on federally-certified motor vehicles brought into the state, I argued that the fee showed that the state did not really need the California waivers, because otherwise instead of putting the money in the state's general fund the state would have allowed car owners to use the money to improve the emissions controls on their cars or to make a down payment on a newer car (actually, in most cases the federally-certified vehicles had emissions controls that were the same as or similar to those on comparable California-certified vehicles). Payment of the fee did not exempt the vehicle from passing the California smog test or from hundreds of dollars in repairs if the vehicle failed the test.

The Sierra Club supported the smog impact fee. that figures.

Today most emissions (not counting CO-2) from internal combustion engines come from older cars, poorly maintained newer cars, trucks, buses, motorcycles, aircraft, boats, gardening equipment, etc.. Very little comes from properly maintained newer cars.

Merry Christmas.
12.25.2007 1:43pm
Moneyrunner43 (www):
Mr. Liberal,

Thanks for dropping the ridiculous white hat vs. black hat comparison. Let’s get to the basic argument.


I agree with you that civil servants can potentially be bad. My point is that "political accountability" is not a good reason to think that political appointees will be better.


No one here is arguing whether career civil servants are either “better” or “worse” (whatever that means) than political appointees. What we are saying is that political appointees serve at the pleasure of elected officials. It has often been said that personnel is policy. Political appointees are supposed to implement the policies of the elected officials. That’s not a bug, it’s a feature. It’s why we have elections. It’s to guarantee that an unelected bureaucracy does not implement policies that oppose the wishes of the electorate. If those elected officials are replaced because the public disagrees with the policies their appointees have implemented, policies will be changed.


The argument that political appointees decisions should trump civil servants because that is the result of an election is also not something I disagree with, depending, of course, on the particular institutional context.



And what is that context? From your previous comments it may mean that the President’s appointees cannot implement his policies in the seventh or eighth year of his terms of office. How about his second term, since he can’t run for re-election. Oh, wait, he can run his wife, like the Perons or the Clintons.


Finally, I would not argue in favor of being passionate for an unjust cause. The adjective "passionate" used to modify "child molester" is quite scary. But, part of the reason that it is scary is because we fear that a passionate evil doer will be more effective than one not committed to their evil plans.



Just so. One of the inevitable truths of life is that any institution gradually becomes single minded about fulfilling its mission … frequently to the detriment of other competing objectives. Many of the regulations emanating from organizations like the EPA avoid or fudge the cost/benefit calculations that people make as they run their daily lives. The regulators can become fanatics pursuit of their institutional causes. And why not? There are not costs to them for doing so. In fact, there are rewards for doing so. That’s why Mr. Hansen of NASA was able to use flawed data in support of his global warming studies, and get praised by the media for his “courage.”

The point is that someone who is committed to an objective will do a better job than someone who is not. A political appointee who is not committed to the mission of their agency or who does not agree with the purpose behind the law administered by an agency is not going to be as effective as someone who is committed to the mission of the agency. On the other hand, they are likely to less harm than someone who is passionately committed to thwarting the mission of the agency.



This begs the question of what a better job is. Political appointees know that they –and the administration whose policies they implement – are ultimately accountable to the people. The other assumption behind your statement is that the agency’s mission is a good one. And that the agency’s mission is more important that the people’s ability to change or terminate it via elections.

There is nothing more pernicious to the freedom of the people than the creation of a ruling class who can regulate how people will live without regard to the will of the people. It is a direction that the European Union is taking. One in which un-elected rule making bodies create standards to which everyone must adhere. It is profoundly illiberal and dictatorial.

Your name is not well chosen.
12.25.2007 2:33pm
Larry Fafarman (mail) (www):
As I said, the initial opposition to the California waiver provision was so great that the provision did not identify California by name but was instead written as a "grandfather clause" (as if that would fool anybody). I think that the idea of using California as a "testing area" for new emissions control equipment and technologies was what finally persuaded Congress to enact the California waiver provision. It is apparent that California is now trying to use the waiver provision for something completely different from the provision's original intended purpose.

So far the focus has been on the word "extraordinary" in the phrase "compelling and extraordinary conditions" in the California waiver provision (42 USC §7543(b)), but I assert that the word "compelling" is also significant here. The word "compelling" implies that granting a waiver, if not essential, would at least be of great benefit to California, but since granting the waiver requested here would be of insignificant benefit to California, then the conditions are not "compelling."
12.26.2007 1:32am
Larry Fafarman (mail) (www):
Though we have been hearing that all of the "experts" have been saying that the EPA is going to lose in court, here are two experts who disagree with that prediction:

A different view came from Jeff Holmstead, formerly the Bush administration's top EPA official on air-quality issues and now a Washington, D.C., attorney. He said the federal agency has a strong legal position.

"EPA's best argument is that the Clean Air Act was intended to allow California to deal with local air pollution problems," Holmstead said. "It was not intended to allow California to deal in any way it wants with a problem that's global in nature."

Ruckelshaus' 1984 decision on diesel emissions, and other EPA approvals of California waivers, were based on local conditions that the state could improve by tightening its emissions standards, Holmstead said. "It's not as though California can do anything about climate change in California by regulating emissions in California," he said . . . . . .

. . . . conservative scholar John Eastman, dean of Chapman University School of Law in Orange County, said a federal agency's views are entitled to respect from the courts even if they represent a change of course.

"Administrations are part of the political process," Eastman said.

He argued that the EPA is entitled to interpret the law differently for local and global problems. When an agency's view of the law is reasonable, regardless of previous interpretations, he said, "courts are obligated to give the same level of deference."

Also, as for the statement, "EPA's best argument is that the Clean Air Act was intended to allow California to deal with local air pollution problems," I assert that the real reason for the California waivers was to use the state as a "testing area" for new emissions control equipment and technologies. Because of the high mobility of motor vehicles and air pollution, very stringent emissions standards are needed on all motor vehicles sold anywhere in the USA. New California standards were quickly adopted at the federal level. For many years, the California and federal emissions standards were virtually identical. I checked the factory manuals for the emissions controls on my 1978 4-cylinder AMC Gremlin and my 1990 Pontiac Grand Am. On the Gremlin, the emissions controls -- e.g., the catalytic converter, the air pump, and the exhaust gas recirculation system -- were identical on the California and federal models. On my 1990 Pontiac Grand Am, the only difference between the California and federal models was the number on an engine-control computer chip, and I don't know if there was any actual difference in the chips (there almost certainly was not a significant difference). I had a conniption fit when I was assessed the $300 "smog impact fee" on the Pontiac, which I bought as a used car in California. I was later told that the car was exempt from the fee because a previous owner had recently paid the fee, but I decided to sue California and the US EPA anyway because of the mental suffering resulting from being initially assessed this abominable fee.
12.26.2007 6:14am
JOe:
Who is to say that the career civil servants dont have an ideological bias. Maybe its the political appointment hacks that are actually doing a rational cost benefit and marginal cost marginal benefit analysis.
12.26.2007 9:04am
Larry Fafarman (mail) (www):
A lot of people have this crazy idea that federally certified motor vehicles are gross polluters.
12.26.2007 9:05am
Larry Fafarman (mail) (www):
JOe said:
Who is to say that the career civil servants dont have an ideological bias.

As I pointed out, EPA Administrator Johnson is a career EPA civil servant himself -- he has worked 26 years for the EPA.

Maybe its the political appointment hacks that are actually doing a rational cost benefit and marginal cost marginal benefit analysis.

Before it is appropriate to do a cost-benefit analysis, it is first necessary to determine whether California (or, arguably, any of the other states that have adopted the California standards) satisfies all of the basic requirements for a waiver of federal pre-emption. The "compelling and extraordinary conditions" requirement is not satisfied.
12.26.2007 9:45am
Westie:
Mr. Adler,
Chevron says: "Such legislative regulations are given controlling weight unless they are arbitrary, capricious, or manifestly contrary to the statute."
To avoid being arbitrary and capricious, an agency decision must be supported by substantial evidence on the record. Isn't this waiver decision legally doomed for either one of two reasons: 1) The Administrator did not support the decision with substantial evidence; or 2) if it was made contrary to staff evidence, "it [was not] a reasonable choice within a gap left open by Congress."
12.26.2007 2:55pm
Larry Fafarman (mail) (www):
Westie said,
Isn't this waiver decision legally doomed for either one of two reasons: 1) The Administrator did not support the decision with substantial evidence;

There is "substantial evidence" -- in fact, airtight evidence -- that the "compelling and extraordinary conditions" requirement for the waiver is not satisfied.

or 2) if it was made contrary to staff evidence, "it [was not] a reasonable choice within a gap left open by Congress."

Congress left no open "gap" -- Congress explicitly stated that "compelling and extraordinary conditions" are a requirement for granting a waiver.

According to the waiver provision's legislative history, the provision should have said, "if it is determined that new emissions control equipment or technology should be tested or developed in California before being adopted nationally." Actually, allowing other states to adopt the California standards (11 have already adopted the California standards and 5 plan to) defeats this purpose of using California as a limited "testing area" for new emissions control equipment and technologies in order to save money and effort. Consider, for example, the ZEV (zero emissions vehicle) program using electric vehicles, which were tried in California and didn't work out and were shelved, at least for the time being.
12.26.2007 5:06pm
Westie:
Mr. Fafarman,
That's an interesting pair of conclusions, given that the two articles linked in Adler's piece support the finding that the evidence was against the Administrator's position and that the only evidence in support is the assertion that the necessary criteria weren't met. Given the post hoc nature of the rationalization for the decision, I'm going to guess that there was some butt-covering going on, which doesn't sound like the substantial evidence necessary.
12.26.2007 6:05pm
Larry Fafarman (mail) (www):
Westie said,
Mr. Fafarman,
That's an interesting pair of conclusions, given that the two articles linked in Adler's piece support the finding that the evidence was against the Administrator's position and that the only evidence in support is the assertion that the necessary criteria weren't met.

"The assertion that the necessary criteria weren't met" is a pretty darn serious assertion!

In my comment of 12.26.2007 6:14am, I posted the opinions of two experts who support the waiver denial -- one of those experts is a former top Bush administration EPA official on air-quality issues.

Given the post hoc nature of the rationalization for the decision, I'm going to guess that there was some butt-covering going on

"Post hoc"? How so?

The smog problem in California is not even extraordinary anymore. The smog in Houston rivals the smog in the Los Angeles area and affects far more people -- in the Los Angeles area the people who are most seriously affected by smog live in Crestline, a mountain hicktown of about 8,000. I live in the west end of Los Angeles and the air is mostly clean here. California is not even serious about smog abatement -- as I said, the state has financial disincentives for the ownership of newer vehicles, which tend to have lower emissions than older vehicles.
12.26.2007 8:34pm
Larry Fafarman (mail) (www):
BTW, when I said that the real reason for the waivers was to use California as a "testing area" for new emissions control equipment and technologies, I did not mean to imply that this was the only real reason. Another reason was to give California, with its bad smog problem, little headstarts in benefiting from that new equipment and technologies. However, the headstarts were generally so small as to be insignificant or nearly so.

So far as I know, that stupid EPA ruling -- upheld 2-1 in Motor &Equip. Mfrs. Ass'n, Inc. v. EPA , 627 F.2d 1095 (D.C. Cir. 1979) -- that new California-certified motor vehicles could not be sold in states under the federal standards is still in effect. At the Los Angeles auto show a few years ago, I saw emissions certification labels saying that the vehicles could not be sold outside of California-standards states. Forcing automakers to make one exclusive line of vehicles for California-standards states and another exclusive line of vehicles for federal-standards states imposes a great burden on the marketing of the vehicles.

Here is a comparison of the current federal and California standards. Tightening emissions standards on new cars is rather pointless because properly maintained new cars are no longer a major source of air pollution (except perhaps for light trucks and SUV's, which are allowed to pollute more than cars). The California waiver provision should be abolished or at least automakers should be allowed to sell California-certified vehicles in the federal-standards states. It is estimated that present and impending California-standards states together already have over half of the US population, so the California standards might as well be adopted nationally. Of course the bureaucrats are not going to recommend repeal of the California waiver provision -- they make their living off of this mess.

Also, the EPA (or Congress if necessary) should require all the states to remove or minimize financial disincentives for the ownership of newer, cleaner vehicles -- e.g., there should be requirements for low registration fees, no sales tax, and no local property tax on new vehicles, and auto-insurance redlining should be eliminated.

No one has a stronger desire for clean air than I do. I have lived in Los Angeles for decades and well remember the burning eyes and the shortness of breath caused by smog.
12.27.2007 3:22pm
Larry Fafarman (mail) (www):
To you Doubting Thomases, here are some examples of what I have been talking about --

In contrast to federally encouraged state control over stationary sources, regulation of motor vehicle emissions had been a principally federal project. See generally Motor Vehicle Mfg. Ass'n v. New York State Dep't of Envtl. Conserv., 17 F.3d 521, 524-27 (2d Cir. 1994) (" MVMA "); Motor &Equip. Mfrs. Ass'n, Inc. v. EPA, 627 F.2d 1095, 1101-03, 1108-11 (D.C. Cir. 1979) (" MEMA "), cert. denied, 446 U.S. 952 (1980). The regulatory difference is explained in part by the difficulty of subjecting motor vehicles, which readily move across state boundaries, to control by individual states . . . . .

. . .. In spite of Congress' determination to protect manufacturers from multiple emissions standards, see MEMA, 627 F.2d at 1109 (citing S. Rep. No. 403, 90th Cong., 1st Sess. 33 (1967)), California was granted an exemption from the § 209(a) preemption. Congress recognized that California was already the "lead[er] in the establishment of standards for regulation of automotive pollutant emissions" at a time when the federal government had yet to promulgate any regulations of its own. MEMA, 627 F.2d at 1109 n.26 (quoting S. Rep. No. 192, 89th Cong., 1st Sess. 5 (1965)). California's Senator Murphy convinced his colleagues that the entire country would benefit from his state's continuing its pioneering efforts, California serving as "a kind of laboratory for innovation." Id. at 1109, 1110 n.31, 1111.

-- from EPA et al. v. Hertz Equipment Rental Corp. et al. (DC Circuit 1996) emphasis added

Have I made my points yet?
12.27.2007 7:08pm
Larry Fafarman (mail) (www):
BTW, these states could discourage purchase of new fuel guzzlers by increasing state fuel taxes. I would be surprised if high fuel prices have not already caused the new-vehicle market to shift away from fuel guzzlers.

Again, the California waivers should be abolished.
12.28.2007 5:51am